Where There's No Will

The Montana Supreme Court affirmed a holding that a automatically-deleting text message was not a will and was properly not admitted to probate

On January 8, 2022, Brockbank separately sent three individual text messages, each nearly identical in content except for changes in recipient names, to Karnasuta, Holden, and Tenold. Brockbank used the Wire secured text messaging application (Wire) to communicate as he was very “security minded.” Brockbank identified himself on Wire by the username “DBK” and a picture of a “motorcycle.” Wire automatically deletes messages unless the user changes the default setting, which Brockbank did not. Holden and Tenold did not save the message. Karnasuta took a screenshot of the text message before it deleted because the message “seemed a little out of the ordinary.” Brockbank did not direct Karnasuta to do so. In the text message saved by Karnasuta, Brockbank wrote he was “touching up [his] will” and that ownership of his sword company and the inventory of swords, located in Montana, “is going to go” to Karnasuta, Holden, and Tenold.

Brockbank was visiting Kyiv, Ukraine, and experiencing significant health problems when he sent the text messages. On February 24, 2022, Brockbank died abroad.

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On December 14, 2022, Tenold petitioned to have the screenshot of the text message taken by Karnasuta entered into probate as a testamentary device under § 72-2-523, MCA. The parties agreed that the text message did not meet the requirements of either a duly executed or holographic will under § 72-2-522, MCA. Instead, the dispute concerned whether Brockbank intended the text message to constitute a will under § 72-2-523, MCA. The District Court determined that the text message did not demonstrate the appropriate intent to become an operative testamentary document.

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Here, the District Court correctly concluded that the text message did not demonstrate the requisite intent to be a testamentary device. Brockbank’s text message did not contain a clear indication of intent. The language of the text message claimed that Brockbank was “touching up [his] will” and that the sword business was “going to go” to the three friends. Additionally, he neither signed the text message nor appended his name at all. The message came from Brockbank’s wire account where he only identified himself by the username “DBK” and a picture of a motorcycle. The plain language of the text message appears to inform the recipients that Brockbank desired to modify his will, but the record contains no evidence he did so prior to his demise.

Beyond the language of the text message, the medium in which Brockbank sent the text further undermines Tenold’s claim: Brockbank had not changed the settings to prevent the automatic deletion of the message and he provided no instructions to his friends to save the contents of the message. Karnasuta created a screenshot of his own volition. This suggests that the message itself was meant to be informative rather than testamentary. 

Decedent's obituary describes him as a "respected authority on Japanese swords and a published author. (Mike Frisch)